Texas National Guard asks Greg Abbott if it should extend military same-sex benefits

Here’s the dilemma: The Department of Defense, based on a recent U.S. Supreme Court decision, has ordered certain benefits be extended to same-sex, legally married couples in the military.

But the Texas Military Forces — aka TXFM and the Texas national guard — is a state agency and the Texas Constitution has a provision that same-sex marriages cannot be recognized.

So the adjutant general’s office has asked the attorney general to help sort out whether this is a military chain-of-command order, or is a state office obligated to follow Texas law?

“Texas law specifically prohibits a state agency or political subdivision from recognizing or validating a same-sex marriage,” the request for a legal opinion states. But the national guard personnel are under state control only until they are called up for active duty, and then they answer to the federal government.

“What action, if any, can the TXMF take in order to fulfill the DoD policy of extending spousal and dependant benefits to same-sex spouses without violating the Texas Constitution or Texas state law?” the request for opinion asks.

So far, as an Associated Press story reported earlier this week, Texas military brass has told Texas soldiers to apply for their benefits at federal bases, so as not to deny them benefits being offered to all other military personnel. And Texas and Mississippi, so far, are the only states to defy the defense department directive.

Now, as to guessing how the attorney general might respond, we can look at history. Greg Abbott has intervened to stop divorces between gay couples married legally in other states, saying Texas doesn’t recognized their marriage and so they cannot get a divorce.

Abbott has told cities, school districts and counties that they could not extend health coverage to domestic partners if the policy defines their relationship as similar to a marriage. The benefits would be extending recognition to a relationship as a marriage that is not a marriage under state law, was his reasoning.

And Abbott most recently has decried a San Antonio ordinance extending gay people protections in housing, jobs and public accommodations. In a letter to Mayor Julian Castro, Abbott cited the Texas Constitution as part of his basis for strongly opposing the ordinance.

Abbott’s office generally has 45 days to answer the request for an opinion.

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The blog for the Dallas Morning News politics team tracks Dallas Fort Worth area, Texas and national campaigns.